Profile: Detainee Treatment Act

Detainee Treatment Act was a participant or observer in the following events:

Rene Lerner, a deputy assistant attorney general in the Office of Legal Counsel (OLC), and Justice Department lawyer Adrien Silas send a memo to Assistant Attorney General William Moschella. The memo will remain classified, but the American Civil Liberties Union (ACLU) will learn that it pertains to the so-called “McCain Amendment,” later known as the Detainee Treatment Act (see December 15, 2005). President Bush will sign the bill into law, but will include a signing statement that states the administration will not follow the law because it impinges on the president’s constitutional authority to conduct military operations (see December 30, 2005). It is unclear whether Bush’s signing statement is influenced by the memo. [ProPublica, 4/16/2009]

Senator John McCain (R-AZ) introduces an amendment to the annual legislation to fund the Defense Department. McCain’s amendment, co-sponsored by Senate Armed Services Committee chairman John Warner (R-VA) and Senator Lindsey Graham (R-SC), a former military lawyer, states that military interrogators cannot exceed the limits on detainee treatment set forth in the US Army Field Manual. In essence, the amendment would prohibit the use of harsh interrogation techniques that many, including McCain, feel constitute torture. The Field Manual limits were specifically written to comply with the Geneva Conventions. The amendment also prohibits US officials, including CIA agents, from inflicting not just torture but any form of “cruel, inhuman, and degrading treatment” on anyone in their custody, no matter where in the world the prisoner is being kept. The amendment, later known as the McCain Amendment or the McCain Torture Ban, becomes the subject of fierce, largely private negotiations between McCain and the White House. Vice President Cheney quickly lobbies friendly Republicans in Congress to oppose the amendment, and has private meetings with Warner and McCain. At Cheney’s behest, Senate Majority Leader Bill Frist (R-TN) withdraws the entire bill from consideration rather than allow it to pass with the McCain amendment attached. [Savage, 2007, pp. 220-221]

The Army adopts a new, classified set of interrogation methods that some feel may change the nature of the debate over cruel and inhuman treatment of detainees in US custody. The Detainee Treatment Act (DTA—see December 30, 2005), which bases its definition of torture in part on Army standards, is currently wending its way through Congress. The new set of instructions are being added to the revised Army Field Manual, after they are approved by undersecretary of defense Stephen Cambone. The addendum provides exact details on what kinds of interrogation procedures can and cannot be used, and under what circumstances, pushing the legal limit of what interrogations can be used in ways that the Army has never done before. Some military observers believe that the new guidelines are an attempt by the Army to undercut the DTA, and many believe the bill’s sponsor, Senator John McCain (R-AZ) will be unhappy with the addendum. “This is a stick in McCain’s eye,” one official says. “It goes right up to the edge. He’s not going to be comfortable with this.” McCain has not yet been briefed on the contents of the new guidelines. McCain spokesman Mark Salter says, “This is politically obtuse and damaging. The Pentagon hasn’t done one molecule of political due diligence on this.” One Army officer says that the core of the definition of torture—what is and is not “cruel, inhumane, and degrading” treatment—“is at the crux of the problem, but we’ve never defined that.” The new Army Field Manual specifically prohibits such tactics as stress positioning, stripping prisoners, imposing dietary restrictions, using police dogs to intimidate prisoners, and sleep deprivation. The new manual is expected to be issued before the end of the year. [New York Times, 12/14/2005] The day after this is reported, President Bush agrees not to veto the DTA (see December 15, 2005).

The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]

Without the knowledge of many in Congress, Vice President Cheney and his allies in Congress manage to insert language into the Detainee Treatment Act (DTA—see December 30, 2005) that renders much of the bill nearly worthless. Some of the widest exceptions are inserted without the knowledge of all but a very few Congressmen. One is the exemption for the CIA, which instead of being bound by the interrogation techniques described in the US Army Field Manual, is only forbidden in general to employ “cruel” or “inhuman” methods. Those terms will be defined in light of US constitutional law. Because of the Supreme Court’s decision that cruelty is an act that “shocks the conscience,” Cheney’s chief lawyer, David Addington, has argued that harsh interrogations would be much less shocking if performed on detainees suspected of planning or taking part in mass casualty terrorist attacks. What “shocks the conscience” is to an extent “in the eye of the beholder,” Cheney has already said. [Washington Post, 6/25/2007]

After months of opposition and a recent, clandestine rewriting of the bill (see Before December 30, 2005), President Bush signs the Detainee Treatment Act (DTA) into law, effectively outlawing torture by government and military officials (see December 15, 2005). However, Bush also inserts a signing statement into the record reserving for himself the right to ignore the law under his powers as commander in chief if he judges that torturing a prisoner is in the interest of national security (see December 30, 2005). Signing statements have no legal status, but serve to inform the nation as to how the president interprets a particular law. In this case, Bush writes that he will waive the restrictions on torture if he feels it is necessary to protect national security. “We consider ourselves bound by the prohibition on cruel, unusual, and degrading treatment,” says a senior administration official, but under unusual circumstances—a “ticking time bomb” scenario, for example, where a detainee is believed to have information that could prevent an imminent terrorist attack, Bush’s responsibility to protect the nation will supersede the law. Law professor David Golove is critical of the White House’s position, saying: “The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it’s important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.’ They don’t want to come out and say it directly because it doesn’t sound very nice, but it’s unmistakable to anyone who has been following what’s going on.” Bush has issued numerous signing statements signaling his intent to flaunt the law in the areas of domestic surveillance, detaining terrorist suspects without due legal process, and previous legislation forbidding the torture of prisoners. Many legal and civil rights organizations believe that Bush’s signing statement is part of his push for a “unitary executive,” where the president has virtually unlimited powers in the areas of foreign policy and national security, and neither Congress nor the courts have the right to limit his powers (see April 30, 1986). Former Justice Department official and law professor Marty Lederman says: “The whole point of the McCain Amendment was to close every loophole. The president has re-opened the loophole by asserting the constitutional authority to act in violation of the statute where it would assist in the war on terrorism.” Human Rights Watch director Elisa Massamino calls the signing statement an “in-your-face affront” to both McCain and to Congress. “The basic civics lesson that there are three co-equal branches of government that provide checks and balances on each other is being fundamentally rejected by this executive branch. Congress is trying to flex its muscle to provide those checks [on detainee abuse], and it’s being told through the signing statement that it’s impotent. It’s quite a radical view.” [Boston Globe, 1/4/2006; Boston Globe, 4/30/2006]

Georgetown law professor Marty Lederman, a former Justice Department official under both the Bush and Clinton administrations, notes the recent signing statement from the White House that essentially states President Bush will ignore the newly authorized Detainee Treatment Act (see December 30, 2005). “So much for the president’s assent to the McCain Amendment” (see December 15, 2005), Lederman writes. Of Bush’s signing statement itself, he writes: “Translation: I reserve the constitutional right to waterboard when it will ‘assist’ in protecting the American people from terrorist attacks.… You didn’t think [Vice President] Cheney and [Cheney’s chief of staff David] Addington (see December 30, 2005) were going to go down quietly, did you?” [Marty Lederman, 1/2/2006; Savage, 2007, pp. 225]

Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) file an amicus curiae brief with the Supreme Court in the case of Hamdan v. Rumsfeld (see June 30, 2006) saying that because of the passage of the Detainee Treatment Act (DTA—see December 15, 2005), the Court no longer has jurisdiction over the case. Graham and Kyl argue their point by citing the “legislative history” of the DTA, in particular the official statements Graham and Kyl made during debate over the bill, and specifically an “extensive colloquy” between the two that appears in the Congressional Record for December 21, 2005. Graham and Kyl argue that this “colloquy,” which argues that Guantanamo prisoners have no rights under the standard of habeas corpus, stands as evidence that “Congress was aware” that the DTA would strip the Court of jurisdiction over cases that involve Guantanamo detainees. (The Senate included an amendment written by Graham, Kyl, and Carl Levin (D-MI) to the DTA that would reject habeas claims in future court cases, but does not apply retroactively to cases already filed, such as Hamdan.) However, Graham and Kyl never engaged in such a discussion on the floor of the Senate. Instead, they had the text inserted in the Record just before the law passed (see December 30, 2005), meaning that no one in Congress heard their discussion. The brief indicates that the discussion happened during the debate over the bill when it did not. The Record indicates that the discussion that did take place concerning the Hamdan case comes from Democrats, and explicitly state that the DTA has no bearing on the case. C-SPAN video coverage of the debate proves that Graham and Kyl never made those statements, and Senate officials confirm that the discussion was inserted later into the Record. But in their brief, Graham and Kyl state that “the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet… or are underlined.” The Record shows no such formatting, therefore, says the brief, it must have been live. The debate between Graham and Kyl is even written to make it appear as if it had taken place live, with Graham and Kyl answering each other’s questions, Kyl noting that he is nearing the end of his allotted time, and another senator, Sam Brownback (R-KS) apparently attempting to interject a question. Lawyers for the prosecution will strenuously object to the brief, and Justice Department defense lawyers will use the brief as a centerpiece for their argument that the Supreme Court should throw the case out. [US Supreme Court, 2/2006 ; Slate, 3/27/2006; FindLaw, 7/5/2006] Former Nixon White House counsel John Dean will call the brief “a blatant scam,” and will accuse Graham and Kyl of “misle[ading] their Senate colleagues, but also sham[ing] their high offices by trying to deliberately mislead the US Supreme Court.… I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.… [Graham and Kyl] brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA.” [FindLaw, 7/5/2006] Their efforts will not be successful, as the Supreme Court will ultimately rule against the Republican position in Hamdan vs. Rumsfeld (see June 30, 2006).

President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. [White House, 10/17/2006] The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). [FindLaw, 10/9/2006] It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. [CBS News, 10/19/2006] However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007). Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). [Savage, 2007, pp. 319, 322]'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” [Washington Post, 10/19/2006] After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” [New York Times, 10/19/2006]Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. [FindLaw, 10/9/2006] Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. [Savage, 2007, pp. 322]Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. [FindLaw, 10/9/2006]Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” [Consortium News, 10/19/2006]Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.” Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. [FindLaw, 10/9/2006]CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. [FindLaw, 10/9/2006] The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. [Jurist, 10/4/2006] Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. [Salon, 5/22/2007]No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. [FindLaw, 10/25/2006]Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. [Dean, 2007, pp. 239-240]

Aziz Huq. [Source: American Prospect]Aziz Huq, an author and the director of the Brennan Center for Justice at New York University, writes that the Protect America Act (PAA-see August 5, 2007) came about as a result of what he calls “the most recent example of the national security waltz, a three-step administration maneuver for taking defeat and turning it into victory.” Step one is a court defeat for the administration, for example regarding detainees at Guantanamo (see June 28, 2004), or the overruling of military commissions in 2006 (see June 30, 2006). The second step, which comes weeks or months later, is an announcement that the ruling has created a security crisis and must be “remedied” through immediate legislation. The third and final step is the administration pushing legislation through Congress, such as the Detainee Treatment Act (see December 15, 2005) or the Military Commissions Act, that, Huq writes, “not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.” Step One: FISC Refuses to Approve NSA's Surveillance Program - In January 2007, the administration announced that it was submitting the NSA’s domestic surveillance program to the Foreign Intelligence Surveillance Court (FISC), the secret court that issues FISA warrants for surveillance (see May 1, 2007). This was due to pending court cases threatening to rule the program in violation of FISA and the Fourth Amendment; the administration wanted to forestall, or at least sidestep, those upcoming rulings. In June, FISC refused to approve parts of the NSA program that involved monitoring overseas communications that passed through US telecom switches. Since a tremendous amount of overseas communications are routed through US networks, this ruling jeopardized the NSA’s previous ability to wiretap such communications virtually at will without a warrant. The administration objected to the NSA having to secure such warrants. Step Two: The Drumbeat Begins - Months later, the drumbeat for new legislation to give the NSA untrammeled rights to monitor “overseas” communications, which not only traveled through US networks, but often began or ended with US citizens, began with appearances in the right-wing media by administration supporters, where they insisted that the FISC ruling was seriously hampering the NSA’s ability to garner much-needed intelligence on terrorist plots against the US. The White House and Congressional Republicans drafted legislation giving the NSA what it wanted, and presented it during the last week of the Congressional session, minimizing the time needed for scrutiny of the legislation as well as reducing the time available for meaningful debate. Step Three: Passing a Law With Hidden Teeth - The legislation that would become the Protect America Act was carefully written by Bush officials, and would go much farther than giving the NSA the leeway it needed to wiretap US citizens. Instead, as Huq writes, “the Protect America Act is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight.” Democrats believed they had negotiated a deal with the administration’s Director of National Intelligence, Mike McConnell, to limit the law to addressing foreign surveillance wiretaps, but, Huq writes, “the White House torpedoed that deal and won a far broader law.” The law removes any real accountability over domestic surveillance by either Congress or the judiciary. Former CIA officer Philip Giraldi says that the PAA provides “unlimited access to currently protected personal information that is already accessible through an oversight procedure.” The law is part of the administration’s continual attempts to “eviscerat[e]” the checks and balances that form the foundation of US democracy. Ramifications - The law includes the provision that warrantless surveillance can be “directed at a person reasonably believed to be located outside of the United States.” Huq writes that this is a tremendously broad and vague standard that allows “freewheeling surveillance of Americans’ international calls and e-mails.” He adds: “The problem lies in the words ‘directed at.’ Under this language, the NSA could decide to ‘direct’ its surveillance at Peshawar, Pakistan—and seize all US calls going to and from there.… Simply put, the law is an open-ended invitation to collect Americans’ international calls and e-mails.” The law does not impose any restrictions on the reason for surveillance. National security concerns are no longer the standard for implementing surveillance of communications. And the phrase “reasonably believe” is uncertain. The provisions for oversight are, Huq writes, “risibly weak.” Surveillance need only be explained by presentations by the Director of National Intelligence and the Attorney General to FISC, which has little room to invalidate any surveillance, and furthermore will not be informed of any specific cases of surveillance. As for Congress, the Attorney General only need inform that body of “incidents of noncompliance” as reported by the administration. Congress must rely on the administration to police itself; it cannot demand particulars or examine documentation for itself. The law expires in six months, but, Huq notes, that deadline comes up in the middle of the 2008 presidential campaign, with all the pressures that entails. And the law allows “the NSA to continue wielding its new surveillance powers for up to a year afterward.” The law, Huq writes, “does not enhance security-related surveillance powers. Rather, it allows the government to spy when there is no security justification. And it abandons all but the pretense of oversight.” [Nation, 8/7/2007]

In a blistering editorial, the New York Times lambasts both the Bush administration and the Democratic leadership in the Senate for allowing Michael Mukasey, the new attorney general, to slide through the confirmation process with so little challenge (see November 8, 2007). The only thing left in the Senate’s traditional responsibility of “advice and consent” is the “consent” part, the editors write. The editorial continues: “Once upon a time, the confirmation of major presidential appointments played out on several levels—starting, of course, with politics. It was assumed that a president would choose like-minded people as cabinet members and for other jobs requiring Senate approval. There was a presumption that he should be allowed his choices, all other things being equal. Before George W. Bush’s presidency, those other things actually counted. Was the nominee truly qualified, with a professional background worthy of the job? Would he discharge his duties fairly and honorably, upholding his oath to protect the Constitution? Even though [he or] she answers to the president, would the nominee represent all Americans? Would he or she respect the power of Congress to supervise the executive branch, and the power of the courts to enforce the rule of law? In less than seven years, Mr. Bush has managed to boil that list down to its least common denominator: the president should get his choices.” The Times observes that in the first six years of Bush’s rule, he had an enthusiastically compliant set of Republican allies in Congress, but during that time, minority Democrats “did almost nothing… to demand better nominees than Mr. Bush was sending up. And now that they have attained the majority, they are not doing any better.” The editors focus particularly on two issues: Mukasey’s refusal to answer straightforward questions on whether waterboarding is torture, and the Democrats’ refusal to filibuster the Senate vote. The Times notes that Mukasey passed confirmation with a 53-40 vote. Democrats have made what the Times calls “excuses for their sorry record” on a host of issues, and first and foremost is the justification that it takes 60 votes to break a filibuster. “So why did Mr. Mukasey get by with only 53 votes?” the Times asks. “Given the success the Republicans have had in blocking action when the Democrats cannot muster 60 votes, the main culprit appears to be the Democratic leadership, which seems uninterested in or incapable of standing up to Mr. Bush.” The editors do not accept the rationale of Mukasey supporters like Charles Schumer (D-NY), who argued that by not confirming Mukasey, the path would be clear for Bush to make an interim appointment of someone far more extreme. The Times calls this line of argument “cozy rationalization,” and by Mukasey’s refusal to answer questions about his position on waterboarding, he has already aligned himself with the extremist wing of the administration. For the record, the Times notes, “Waterboarding is specifically banned by the Army Field Manual, and it is plainly illegal under the federal Anti-Torture Act, federal assault statutes, the Detainee Treatment Act (see December 30, 2005), the Convention Against Torture (see October 21, 1994), and the Geneva Conventions.” Therefore, “[i]t is hard to see how any nominee worthy of the position of attorney general could fail to answer ‘yes.’” The Times speculates that Mukasey was not permitted to answer the question by the White House because a “no” answer “might subject federal officials who carried out Mr. Bush’s orders to abuse and torture prisoners after the 9/11 attacks: the right answer could have exposed them to criminal sanctions.” All in all, the Times is appalled by “the Senate giving the job of attorney general, chief law enforcement officer in the world’s oldest democracy, to a man who does not even have the integrity to take a stand against torture.” [New York Times, 11/11/2007]

Senator Ron Wyden (D-OR) replies to a letter from the Justice Department that claims the CIA’s detainee interrogation program is fully compliant with the Geneva Conventions and with US and international law (see September 27, 2007). Wyden challenges the legal rationale for the claims, noting that the cases cited do not directly apply to the question of whether the definitions of “humane treatment” and “cruel, inhuman, and degrading treatment” can vary depending on the identity of the detainee and the circumstances surrounding his interrogation. He also challenges the Justice Department’s rather narrow interpretation of the protections afforded by the Eighth Amendment and the Detainee Treatment Act (see December 30, 2005). [US Senate, 3/6/2008 ]

Senator John McCain (R-AZ), the presumptive Republican nominee for president, urges President Bush to veto an upcoming bill prohibiting waterboarding and other extreme methods of interrogation after himself voting against the bill. The bill passes the Senate on a largely partisan 51-45 vote. It has already passed the House on a similar party-line vote, and Bush has already announced his intention to veto the bill. McCain has won a reputation as an advocate of prisoner rights and a staunch opponent of torture; his five-year stint as a POW in North Vietnam is well-known. But McCain voted against the legislation when it came up for a vote in the Senate, and he opposes the bill now. McCain says he is opposed to waterboarding, but does not want the CIA restricted to following the practices outlined in the US Army Field Manual, as the legislation would require. McCain says: “I knew I would be criticized for it. I think I can show my record is clear. I said there should be additional techniques allowed to other agencies of government as long as they were not” torture. “I was on the record as saying that they could use additional techniques as long as they were not cruel, inhumane and degrading treatment. So the vote was in keeping with my clear record of saying that they could have additional techniques, but those techniques could not violate” international rules against torture. McCain has said he believes waterboarding is already prohibited by the Detainee Treatment Act of 2005 (see December 30, 2005). And CIA director Michael Hayden has said that current law may well prohibit waterboarding; he claims to have stopped CIA agents from waterboarding detainees in 2006, and also claims that the technique was not used later than 2003. McCain’s Senate colleague, Charles Schumer (D-NY) says that if Bush vetoes the bill, then he in essence “will be voting in favor of waterboarding.” [New York Times, 2/13/2008; Associated Press, 2/21/2008] Bush will indeed veto the bill (see March 8, 2008).

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